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Rel 08/31/2007

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
SPECIAL TERM, 2007 _________________________ 1050910 _________________________ John W. Burch v. V. Gordon Moulton et al. Appeal from Mobile Circuit Court (CV-04-2400) COBB, Chief Justice.

This is an appeal from a summary judgment denying the equitable relief requested by the plaintiff, John W. Burch ("Burch"), on the basis that V. Gordon Moulton and the other defendants, all affiliated in some way with the University of

1050910

South Alabama ("USA"),1 are protected by the doctrine of State immunity. In April 2003, just before his scheduled graduation from USA's college of medicine but while on nonacademic probation at that institution, Burch was arrested for the unlawful possession of prescription drugs and pleaded guilty to a misdemeanor charge of possession of drug paraphernalia; he was placed on "administrative leave" from the college of medicine. In May 2004, after Burch completed a drug-treatment program, the student promotions and evaluation committee ("SPEC") of the college of medicine met to evaluate Burch's eligibility for graduation and to make a recommendation to Dr.

All the defendants listed in the complaint as amended are as follows: Dr. V. Gordon Moulton, president of the University of South Alabama; the Board of Trustees of the University of South Alabama; Jack R. Brunson, J.L. Chestnut, Jr., E. Crum Foshee, J. Cecil Gardner, Samuel L. Jones, Larry P. Langford, Donald L. Langham, W.H. "Pat" Lindsey, Bettye R. Maye, Christie D. Miree, Mayer Mitchell, Bryant Mixon, James P. Nix, Dr. Joseph B. Morton, Dr. Steven H. Stokes, Larry D. Striplin, Jr., and Governor Bob Riley, in their capacities as trustees of the University of South Alabama; Dr. Robert A. Kreisberg, dean of the college of medicine of the University of South Alabama; Dr. M. Margaret O'Brien, associate dean of student affairs of the college of medicine; and fictitiously named defendants 1 through 100, members of the medical student promotions and evaluation committee of the college of medicine of the University of South Alabama; the University of South Alabama; the College of Medicine of the University of South Alabama; and Dr. J. Allan Tucker, professor at the college of medicine. 2

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Robert A. Kreisberg, then dean of the college of medicine. Dean Kreisberg subsequently approved the SPEC's recommendation that Burch be dismissed from the college of medicine. After

he was dismissed, Burch sued USA; the college of medicine itself; Dr. J. Allan Tucker, a professor of the college of medicine; V. Gordon Moulton, the president of USA; the Board of Trustees of USA and the individual trustees; Dean

Kreisberg; Dr. M. Margaret O'Brien, associate dean of the college of medicine; and the individual members of the SPEC. Burch sought an order requiring the defendants to issue to him the degree of doctor of medicine. The defendants filed a motion for a summary judgment, asserting as a defense the doctrine of State immunity. The trial court entered a summary judgment for the defendants on the ground of State immunity.
Our standard of review for a summary judgment is settled: "In reviewing the disposition of a motion for summary judgment, 'we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,' Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala. 1988), and whether the movant was 'entitled to a judgment as a matter of law.' Wright v. Wright, 654 So. 2d 542 (Ala. 1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. 3

1050910 SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989). Evidence is 'substantial' if it is of 'such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' Wright, 654 So. 2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So. 2d 359 (Ala. 1993)[overruled on other grounds, Bruce v. Cole, 854 So.2d 47 (Ala. 2003)]; Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala. 1990)." Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala. 1997). The college of medicine, a division USA, is supported by the State of Alabama and is therefore considered a State institution. Students must meet both "scholastic-cognitive" requirements and "scholastic-noncognitive" standards in order to graduate. Cognitive e.g., requirements concern academic and

performance, examinations.

standardized

grades,

courses,

Noncognitive

standards

address

behaviors

deemed necessary by the college of medicine for a career in medicine, e.g., attentiveness, cooperation, responsibility, and maturity.

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1050910 Burch began his first semester of medical school in the fall of 1998. Burch was required to repeat two of his courses

and was placed on academic probation until May 2000, when his grades improved significantly. He was scheduled to graduate

with the class of 2003. During his medical-school career, Burch received numerous complaints relating to the

noncognitive standards, including reports of difficulty with authority, a lack of attentiveness, an unwillingness to

cooperate, and poor attendance. Burch was eventually placed on noncognitive probation in August 2001 based on his delay in taking the United States Medical Licensing Examination

("USMLE"), Step 1, a required exam, the complaints concerning his failure to meet noncognitive standards, and his

significantly late arrival to his first day of a scheduled psychiatry rotation. Burch was still on noncognitive probation when he was arrested in April 2003. Before his arrest, Burch had received a letter dated February 28, 2003, from Dr. Betsy Bennett, then vice dean for student affairs and medical

education, outlining the many obstacles Burch had to overcome in order to graduate. That letter stated, in pertinent part:

"As I made clear to you, I cannot include your name on the list of students to be approved for 5

1050910 graduation unless it is clear that you will meet all graduation requirements by May 9. The Executive Council must approve this list at its April 1 meeting. Based on your failure to send in your application [for the USMLE Step 2 test] as instructed, it will be impossible for you to have scheduled the examination by that time. ... Therefore, I am forced to omit your name from the graduation list. "An additional complicating factor is the fact that you remain on non-cognitive probation and must be removed from probation by the [SPEC] before you can be approved to graduate. [The SPEC] will not remove you from probation until it is clear that you will meet all graduation requirements.... "At this point it is impossible for you to receive a diploma on May 10. Even if you are able to schedule USMLE during the last two weeks of April, we will not receive your scores before graduation. Should you somehow manage to get credit for the two week rotation that you are missing, take and pass ACLS [advanced cardiac life support exam], take USMLE Step 2, be removed from non-cognitive probation by SPEC, get dispensation from the Executive Council to be approved for graduation, and choose to participate in graduation activities, you would receive an empty diploma cover. Your diploma would be mailed to you after we receive a passing score on USMLE Step 2. "You have spent five years of your time and a great deal of borrowed money to reach this point. Having done that, it seems unfortunate to put yourself in a position not to graduate. However, if you do not intend to comply with the graduation requirements, I would suggest that you consider actively, rather than passively, withdrawing from school. There is no need to force us to dismiss you for not fulfilling these criteria."

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1050910 Dr. Bennett drafted another letter dated April 25, 2003,

informing Burch that because he had not yet scheduled his USMLE Step 2 test, a meeting of the SPEC had been scheduled for May 8, 2003, to discuss his failure to meet the

requirements for graduation. Dr. Bennett was not aware when she drafted the letter that Burch had been arrested in the early morning hours of April 25, 2003. During his arrest, Burch consented to a search of his automobile; the search produced not only tablets of Adderall (an amphetamine) blank pad. and acyclovir, but and to also a a signed but used

otherwise

prescription Burch

form

partially the

prescription

admitted

using

illegally

obtained Adderall to help stay awake and the acyclovir, also illegally obtained, for another condition. At a meeting of

the SPEC at which his arrest was discussed, Burch stated: "[I]t was after my Family Practice rotation that I illegally used a prescription pad. ... I basically, you know, forged prescriptions, you know, you know, and had it filled at a pharmacy with a friend. ..." A letter written by Dr. Bennett, dated April 30, 2003, and hand delivered to Burch, stated: "Given our discussion this morning and your statement to me that you have an addiction to prescription drugs, it is clear that no decision on 7

1050910 your academic status is possible until you have completed a course of rehabilitation therapy. ... "I cannot make any promises about your academic future after your therapy is completed. That decision will rest with the [SPEC] and will depend on input from Ms. Rogers [2] and your therapists as well as from you. However, as I said this morning, your first priority is treatment and we will deal with other issues when that is completed." Immediately following his arrest, the college of medicine relieved Burch of all clinical responsibilities. On May 28,

2003, the SPEC placed Burch on administrative leave from the college of medicine pending resolution of his legal matters and the completion of a drug-treatment program. A subsequent meeting of the SPEC was held in December 2003 to discuss Burch's status; Burch was present at the meeting and spoke on his own behalf. Following the meeting, the SPEC recommended to Dean Kreisberg that Burch be dismissed. Burch appealed the decision, and another meeting of the SPEC was scheduled. The final SPEC meeting regarding Burch's dismissal was conducted on May 13, 2004. 3 Burch's attorney was present but,

Ms. Esther Rogers is employed as the employee assistance counselor for a drug-free workplace at USA hospitals and campus. By the time of the May 13, 2004, meeting, Dr. Bennett had been replaced by Dr. Margaret O'Brien and the title of the position changed from vice dean to associate dean for student 8
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1050910 in accordance with school policy, was not allowed to also

participate.

A faculty member, Dr. Kenneth Rettig, was

appointed to represent Burch. The specific charge against Burch to be discussed at the SPEC meeting was that "he engaged in criminal activity leading to his arrest and subsequent guilty plea while he was on non-cognitive probation in the College of Medicine." At the meeting, matters pertaining to Burch's arrest, his cognitive medical-school and record,

noncognitive

medical-school

record,

substance-abuse

treatment were all discussed. Burch's dismissal to Dean

The SPEC again recommended who was the final

Kreisberg,

authority in these matters. Burch met with Dean Kreisberg on May 17, 2004, after learning of the recommendation of the SPEC. Dean Kreisberg stated the following in deposition

regarding his meeting with Burch: "I suggested that he write me a personal letter expressing and confirming his commitment to become a physician in the face of these important obstacles. He indicated he would get the letter to me in several days since he would be leaving shortly for California and had other important commitments. I indicated that I would request a meeting with SPEC after receipt of his letter. By June 2nd I had not received a letter and I upheld the recommendation of SPEC. ... affairs. 9

1050910 "I'm saying that it wasn't important enough to him in the face of the seriousness of all of this to respond in a reasonable period of time and it was consistent with all of his lack of cognitive-

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